Tom Daschle’s Constitution
The majority leader passes the buck.

By Ramesh Ponnuru & John J. Miller
January 4, 2001 3:40 p.m.

n mid-December, Tom Daschle said that Eugene Scalia, President Bush's nominee to be solicitor general of the Labor Department, didn't have the votes to be confirmed. "I don't think he has the 60 votes that would be required for as controversial a nominee as he is," he said on This Week. Daschle isn't trying to sink the nomination, you understand; the votes just aren't there. But Daschle can't wipe off his fingerprints so easily. His claim is true as far as it goes, but it ignores the fact that 60 votes are "required" only by Daschle's say-so. Scalia would need 60 votes to break a filibuster, true, but having 40-odd "no" votes is not the same as having enough senators willing to mount a successful filibuster. Besides, a filibuster would proceed only if Daschle wanted it to.

The stipulation that the 60-vote rule applies only in cases of "controversial" nominees closes the circle. If you can't get 60 votes you're "controversial," so you need 60 votes, so you can't be confirmed. Or — more to the point — if Daschle opposes you, you're controversial, you need and won't get 60 votes, and he has no choice but to kill your nomination.

Evidently emboldened by the absence of criticism from anyone but Republicans and conservative journalists, Daschle has now upped the ante. Last weekend, he explained to Tim Russert that he's not blocking bills and nominees: Alexander Hamilton made him do it.

On Meet the Press on December 30, Daschle said, "Oh, absolutely the majority should rule, but in controversial issues, the Founding Fathers have said that it ought to take a supermajority to pass. The Republicans understand that. They were the ones who killed the economic stimulus package that we tried to offer in early December. . . ."

He returned to his theme later: "[A]s I said, the Founding Fathers in their wisdom chose to assure that there would be ample support for controversial measures before they pass. And I've said on many occasions we're prepared to take up these issues, but a 60-vote majority is something that should be achieved in these cases, and I don't fault that."

Those last five words are priceless. Who can doubt the sincerity of Daschle's commitment to compromise? He won't "fault" his own position. You can't get more reasonable than that.

Daschle is unequivocally wrong about the Founders. They never said, let alone enacted into law, that supermajorities would be required for "controversial" measures. Congress needs a supermajority to propose constitutional amendments, controversial or otherwise. Removing a president from office or ratifying a treaty takes a supermajority of the Senate. The Constitution doesn't mandate or even suggest that ordinary bills and nominations, however controversial, require supermajorities.

We're not going to go to the other extreme and claim that Daschle is violating the Constitution. If he wants to keep in line with the most liberal elements of his caucus, that's his prerogative. Just quit blaming the Founders.

In the Tanks
I: Cato has a new study on the effectiveness of state laws limiting taxes and spending. Michael New concludes, unsurprisingly, that laws passed by initiative tend to be tighter than those passed by legislatures. (This is partly because legislatures impose limits by statute, whereas initiatives often make them part of the state constitution.) Another finding: The most effective laws force immediate refunds when revenues grow faster than they're supposed to.

II: When a wave of states passed "three strikes, you're out" laws in the '90s — mandating that the criminal-justice system throw away the key on a third felony conviction — just about the only person arguing that they would increase murder rates was William Tucker. In The American Spectator, he said that in the absence of a death penalty these laws would create an incentive for criminals with two prior convictions to kill potential witnesses to their next felonies. (See, conservatives are always thinking on the margin.) Now we've had time to see if he was right. In Intellectual Ammunition, a publication of the Heartland Institute, Morgan Reynolds notes that the murder rate hasn't fallen as much in three-strikes states as elsewhere. And according to the research he reviews, the laws haven't done much to deter crime.